Dp v The Law Society of the Australian Capital Territory [2004] ACTSC 130

3. After hearing the case for the respondent we formed the view that it had been unable to establish any basis for any of the findings made against the appellant and ordered that the appeal be upheld. We reserved our reasons. The appellant then sought an order for costs and we granted him leave to file written submissions in support of that application within seven days of the delivery of the Court's reasons for judgment and granted the respondent liberty to file written submissions in response within a further seven days.

4. We now provide reasons for our decision to uphold the appeal and to set aside the orders of the Board.

5. The respondent had received letters from a person and his solicitor complaining, in essence, that the appellant had appeared for the person's former wife in proceedings before the Federal Magistrates Court despite having become her new partner and that he had sought to intimidate the person at a school. The Council of the respondent determined to take no action in relation to these letters of complaint. However, in the course of investigating the issues that had been raised, the respondent's solicitor formed the view that there was an issue as to whether the appellant may have misled the Federal Magistrates Court by announcing his appearance without qualification when he held only a restricted practising certificate and his employer had not been instructed in relation to the proceedings.

6. Accordingly, the respondent's solicitor wrote to the appellant, by letter dated 25 August 2003, informing him that the respondent had been advised of the possibility that his conduct might have constituted "among other things, a breach of Rule 19.1 of the Professional Conduct Rules." That rule provides that a legal practitioner "must not knowingly make a misleading statement to a court on any matter". The letter stated that before the respondent dealt with the matter it wished to provide the appellant with "the opportunity to respond to this allegation".

7. On or about 29 August 2003, the appellant contacted the respondent's solicitor and arranged to meet him at the solicitor's office to discuss the matters raised in the letter. During the course of the meeting he made a number of apparently candid comments about his conduct on the occasion in question but said that he thought it would be prejudicial to him if he were to otherwise respond whilst an application was pending in the Supreme Court to challenge an earlier decision of the respondent refusing to grant him an unrestricted practising certificate.

8. The proceedings before the Board were initiated by a Notice of Complaint dated 14 January 2004 ("the complaint"). The complaint alleged that the appellant had "knowingly misled the Court" as to his right of audience and thereby committed a breach of r 19.1. It also alleged that, by announcing his appearance as he had and allowing or facilitating the filing of an application bearing his name as the solicitor on the record, he had breached his duty to the Court. It was contended that, by reason of these matters, he had been guilty of professional misconduct or unsatisfactory professional conduct. The complaint further alleged that, in electing not to respond in a full and frank manner, in writing and within a reasonable time to the issues raised in the letter of 25 August 2003, the appellant had committed a breach of rr 41.1 and 41.2 of the Professional Conduct Rules. It was contended that this breach constituted unsatisfactory professional conduct.

9. The Board heard the proceedings on 18 May 2004. After making submissions on jurisdictional issues of no present relevance, the appellant indicated that he proposed to withdraw from the proceedings. The Chairperson implored him not to do so but, after asking the Board to notify him of its decision, he left the hearing. It need scarcely be said that this decision was unwise.

10. The Board proceeded to deal with the complaint and made the following findings and orders:

a) Being satisfied that [the appellant] is guilty of unsatisfactory professional conduct in that he misled the Federal Magistrates Court as to his right of audience and thereby committed a breach of Rule 19.1 of the Professional Conduct Rules, the solicitor is hereby reprimanded;

b) Being satisfied that [the appellant] is guilty of professional misconduct in that he failed to furnish in writing a full and accurate account of his conduct in relation to the matters raised in the letter of 25 August 2003, the Board;

(i) suspends, from the date of the making of these orders, for a period of three months, [the appellant's] practising certificate.

(ii) directs [the appellant] to complete within 12 months of the date of these orders and to the satisfaction of the Director of the Legal Workshop attached to the Australian National University, a course in ethics conducted by the Legal Workshop.

(c) [The appellant] shall pay the costs of the Law Society of and incidental to the proceedings before the Board; such costs are to be agreed and failing agreement are to be taxed by the Registrar of the Supreme Court. Such costs are to be calculated on a party/party basis.

11. During the course of the appeal, Mr Crowe SC, who appeared for the respondent, quite properly conceded that the finding that the appellant had misled the Federal Magistrates Court in relation to his right of audience could not be sustained. Instead he sought to argue that the Board had been wrong to dismiss an alternative allegation of impropriety in relation to the appellant's appearance before the Federal Magistrates Court. We were unable to consider this allegation because no-cross appeal had been filed challenging the Board's decision in this respect.

12. Despite Mr Crowe's valiant attempt to sustain the finding that the appellant had been guilty of professional misconduct in failing to be frank and open in his dealings with the respondent, it quickly became apparent that this was also unsustainable.

13. The complaint had not alleged that the appellant's failure to respond to the letter of 25 August 2003 had constituted professional misconduct though it had alleged that it constituted unsatisfactory professional conduct. Indeed, no suggestion that his failure to respond to the letter might have constituted professional misconduct was ever made to him prior to his withdrawal from the proceedings. Yet the Board proceeded to find that he was guilty of professional misconduct.

14. His withdrawal from those proceedings was intemperate, if not foolish. However, that did not justify the Board proceeding, in his absence, to make a finding leading to his suspension from practice without first warning him that the gravity of the relevant allegation had been effectively upgraded and giving him due opportunity to be heard in relation to the proposed findings.

15. More fundamentally, we were unable to see how his failure to respond to the letter could have constituted either professional misconduct or unsatisfactory professional conduct. The relevant allegation in the complaint had been based upon the contention that his failure to respond to the letter had involved a breach of rr 41.1 or 41.2 of the Professional Conduct Rules. Those rules are in the following terms:

41.1 Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.

41.2 A practitioner should respond within a reasonable time and in any event within 14 days (or such extended time as the Society may allow) to any requirement of the Society for comments or information in relation to the practitioner's conduct or professional behaviour and in doing so the practitioner should furnish in writing a full and accurate account of his or her conduct in relation to the matter.

16. Having regard to the terms of r 41.2, it had clearly been open to the respondent to require the appellant to make comments or provide information concerning his conduct in appearing before the Federal Magistrates Court. However, the letter of 25 August 2003 did not purport to impose any such requirement upon him. It merely conveyed the respondent's wish that he be provided with an opportunity to respond to the relevant allegation.

17. Mr Crowe submitted that, given the nature of the relationship that exists between a solicitor and the respondent, the appellant should have construed this statement as importing a requirement that he provide a written response. We are unable to accept this submission. Whilst it is true that a breach of the Professional Conduct Rules does not constitute a criminal offence, it may nonetheless give rise to findings which may seriously tarnish a legal practitioner's reputation and expose him or her to sanctions that may include fines or suspension from practice. Accordingly, if the respondent wished to invoke the power provided by r 41.2, it should have done so by clearly informing the appellant that he was required to provide the relevant information or comments and, preferably, by including an express reference to r 41.2 in order to ensure that he understood that he had an obligation to respond. In the present case, the letter of 25 August 2003 was expressed in terms that reflected commendable courtesy but which clearly offered the appellant an opportunity to respond rather than imposing an obligation upon him to do so.

18. Whilst, as Mr Crowe pointed out, the application of r 41.1 is not dependent upon the imposition of any requirement by the respondent, it was not suggested that the appellant had been less than open or frank in his dealings with the respondent, save by failing to respond in writing to the letter of 25 August 2003. In fact, he had made some response to the letter by contacting the respondent's solicitor and arranging to meet with him to discuss the allegation to which it referred. As previously mentioned, he made a number of apparently candid comments concerning the allegations during the course of that meeting.

19. There is evidence that he also said words to the effect that:

I believe the Law Society is biased against me. I want this issue to be determined by an independent committee. I am not going to respond to your request until the Society agrees to this course.

20. Having regard to the nature of the appeal, it was unnecessary for us to consider whether the appellant had any basis for his apparent belief that the respondent had been biased against him. No feeling of grievance, however heartfelt, entitles a solicitor to refuse to comply with a requirement properly made by the respondent pursuant to r 41.2 or to impose conditions for such compliance or to otherwise deal with the respondent in a manner that is not frank and open. In the present case, however, these comments were made in the context of a letter which had not required the appellant to make any response. On the contrary, it was obviously implicit in the statement that the respondent wished to give him an "opportunity" to respond, that he would be free to either take advantage of the opportunity or decline to do so. It was nonetheless incumbent upon the appellant to be open and frank in any dealings with the respondent's solicitor, but it was not suggested that anything he said involved a lack of candour.

21. Furthermore, on 10 September 2003 the appellant wrote to the respondent's solicitor seeking access to any materials that the respondent might use in making its decision so that he could "be properly apprised of the matters under consideration before making a response". Whilst, as the Board observed, the appellant had not explained why it might have been necessary for him to have had access to these materials before answering the letter, the request does not seem to have been unreasonable. Yet, for reasons that were not explained, the respondent apparently declined to comply with this request, at least until some months had passed, and by that time the complaint had already been filed.

22. We were unable to find any evidence that the appellant had committed a breach of either r 41.1 or r 41.2.

23. It may be hoped that the events that we have described might bring home to the appellant the need to deal with the respondent on a more temperate and co-operative basis. However, we had no doubt that the allegations in the complaint had not been substantiated and that the findings of the Board could not be sustained.

24. It was for these reasons that we upheld the appeal, set aside the orders that had been made by the Board and granted the appellant leave to file written submissions as to costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the appellant: Self represented litigant